Court to Crown: Please stop making excuses for not fulfilling your treaty obligations

The Quebec Court of Appeal recently released a new decision called Makivik c Quebec (Procureure générale) on the duty of the Crown to comply with treaty obligations. The decision is currently only available in French, but an English translation will be published shortly.

The case was about the James Bay and Northern Quebec Agreement (JBNQA) of 1975, involving the Inuit, and certain Cree and Naskapi First Nations. The JBNQA set out obligations on the Quebec government to involve the Hunting, Fishing and Trapping Coordinating Committee established under the Treaty in decision-making about land management policies. The Aboriginal parties argued that Quebec failed to do so, and the Court of Appeal agreed.

The way that the Court of Appeal analyzed the breach of treaty is very interesting in this case and this blog post will take a quick look at what the Court did.

Background

The JBNQA is the first modern land claim treaty, which is an agreement between Aboriginal parties and the Crown that is similar in nature to the historical “Numbered Treaties”. They are agreements between Aboriginal parties and the Crown to share the land. One distinctive feature of modern land claims treaties is the level of detail that they go into to set out the relationship between the Crown and the Aboriginal parties involved.

In Chapter 24 of the JBNQA, the relationship between the Coordinating Committee and the Quebec government is set out. The Coordinating Committee is made up of representatives from the Aboriginal parties as well as from the Crown. It is meant to be a group with expertise in harvesting and in the management of the land. It is meant to come to decisions about what land management and conservation policies to recommend to the Minister. Under certain conditions, the Minister may choose to ignore the recommendations of the Committee, but the Treaty sets out that the Minister must consult with the Aboriginal parties whenever it disagrees with its recommendations.

In 2010, studies had shown that there was an alarming decline in caribou stocks in the territory covered by the Treaty. The Coordinating Committee met to decide how to best deal with the situation for the 2011-2012 hunting season. Quebec had put forward some proposals for conservation measures, such as shortening the open season for the caribou hunt. The Aboriginal parties found those measures to be insufficient, and wanted to put forward stricter conservation policies.

At the same time, the sports hunting lobby, through commercial outfitters, began lobbying the Quebec government against any new restrictions on hunting.

As a result of this lobbying, the Quebec government unilaterally decided to extend by the sports hunt for one herd after having accepted the Coordinating Committee’s recommendation on conservation measures for the 2011-2012 hunting season. For another herd, on which the province and the Aboriginal parties disagreed about the appropriate conservation measures, it decided to forego the Coordinating Committee’s opinion and set the hunting dates and limits. Both decisions were therefore reached without ever having obtained a recommendation from the Coordinating Committee.

The Aboriginal parties took the Quebec government to court to challenge these decisions. The trial judge had concluded that no breach of the JBNQA took place, because the judge found that the previous meetings of the Coordinating Committee constituted sufficient consultation, and that the apparent breaches of the Treaty were insubstantial and of a technical nature only.

Court of Appeal decision

The Court of Appeal took a radically different approach as compared to the trial judge. Reading the provisions of the JBNQA, the Court found that there was a carefully designed scheme to make sure the Coordinating Committee is involved in the decision-making process about the land, especially when disagreements arose between the Aboriginal parties and the Crown.

The Court of Appeal found that in reading all of the JBNQA provisions together, there were two broader treaty rights that could be found: (1) a right of the Aboriginal parties to priority in harvesting, and (2) a right of the Aboriginal parties to co-manage the land along with Quebec.

The Court of Appeal decided that what Quebec did in this case constituted substantial and inexcusable violations of Treaty rights. In prioritizing the wishes of sports hunters over the Aboriginal parties’ need for harvesting to continue living their way of life, the Crown breached the right of the Aboriginal parties, as recognized in the Treaty, to priority in harvesting. Second, in clearly ignoring its explicit obligations in the Treaty to meaningfully consult with the Aboriginal parties, the Crown again breached their Treaty rights.

The Court of Appeal asked the Aboriginal parties to quantify how much the breach of their Treaty rights should be compensated by, and to come back to the Court if necessary to compel the Crown to pay compensation.

This case represents a landmark for courts in the enforcement of Treaty rights, especially those that come out of modern land claims treaties. It suggests that courts are willing to take Treaty rights seriously and to back up the Aboriginal parties to Treaties when the Crown decides to unilaterally ignore specific promises that it made through treaties.

OKT will continue monitoring how this case develops – check back on our blog for more updates!